CIVICUS discusses the recent US Supreme Court ruling on presidential immunity and its potential impact on the 5 November presidential election with Praveen Fernandes, Vice President at the Constitutional Accountability Center, a US think tank and public interest litigation organisation dedicated to studying and applying the constitution’s text, history and values.

On 1 July, the US Supreme Court ruled that presidents have absolute immunity for the exercise of their core constitutional powers and are entitled to a presumption of immunity for other official acts, although they don’t enjoy immunity for unofficial acts. The decision comes as Donald Trump faces criminal charges for trying to overturn his 2020 election loss to Joe Biden. The question now is whether Trump’s actions will be considered official or unofficial. But it’s unlikely he’ll be tried before the election, and if he returns as president he could pardon himself. Critics claim the Supreme Court ruling violates the spirit of the US Constitution by placing the president above the law.

What has the Supreme Court said about presidential immunity?

In Trump v. United States, the Supreme Court’s conservative majority ruled that a former president can be granted a measure of immunity from criminal prosecution for acts committed while in office.

The majority opinion held that there is absolute immunity from prosecution for acts within the president’s ‘exclusive and preclusive authority’ – powers the constitution specifically assigns to the president and no other branch of government. There is a presumption of immunity for official acts that are part of a president’s duties, although this can be rebutted if the government can show that prosecution would not threaten the powers and functions of the executive branch. There is no immunity for unofficial acts.

As the dissenting opinions make clear, the court’s doctrine of presidential immunity departs not only from the text and history of the constitution, but also from the court’s own precedent.

How does this ruling affect the criminal charges against Trump?

While it’s impossible to know with certainty how this Supreme Court decision will affect all of the pending criminal cases against Trump, what we do know is that it will cause additional delays in prosecutions that have already been delayed far too long.

For instance, the federal criminal case related to the 6 January 2021 attempted overturning of the 2020 election was paused for over 200 days until the Supreme Court issued its decision. Now the district court has to deal with issues such as which alleged crimes involve unofficial acts and can therefore be prosecuted.

However, it is highly unlikely that the federal trial will reach a verdict before the presidential election in November. As a result, voters will likely be forced to cast their ballots without knowing whether one of the candidates is criminally responsible for attempting to overturn the results of the last election.

Do you think this ruling could allow for an unfettered second Trump presidency?

The danger seems great in a possible future Trump presidency where the fear of prosecution has been largely removed. But this goes far beyond Trump – it’s a danger that extends to anyone who holds such a powerful role without being held accountable to the same criminal laws that bind all other individuals.

But there are still safeguards. Prosecutors can still pursue crimes related to unofficial acts, and there are still political accountability mechanisms, such as the ability to impeach a president for high crimes and misdemeanours by a vote in the House of Representatives and conviction in a trial in the Senate.

What are the broader implications of this ruling for US democracy?

The conservative majority opinion in Trump v. United States challenges the accountability envisioned by the framers of the constitution and moves the nation closer to the monarchical systems they sought to avoid. The framers envisioned a president accountable to the governed, not a king above the law.

Immunising such a powerful position in the federal government from criminal accountability poses a significant risk and should be sobering to all Americans.

This ruling is the latest reminder that even when the constitution is clear, we depend on judges to interpret it fairly. Judicial nominations matter. Electing presidents who will nominate fair and principled judges is important. Electing senators who will rigorously scrutinise those nominations is important. Let’s not forget that.

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